Telangana High Court
Kaza Vijaya Lalitha Kumari, Khammam ... vs Y Chandra Sekhar Reddy, Mahabubnagar ... on 26 April, 2024
Author: N. Tukaramji
Bench: N.Tukaramji
HONOURABLE SRI JUSTICE SUJOY PAUL
AND
HONOURABLE SRI JUSTICE N. TUKARAMJI
M.A.C.M.A.No.3326 OF 2014
JUDGMENT:(per Hon'ble Sri Justice N. Tukaramji) In this appeal the claim petitioners assailed the decree and order dated 23.09.2013 in M.V.O.P.No.1202 of 2007 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-IV Additional District and Sessions Judge, (Fast Track Court), Khammam.
2. We have heard Mr. Palivela Satyaraja Babu, learned counsel for the petitioners and Mr. Kondadi Ajay Kumar, learned counsel for the respondent No.2/Insurer. 3(a) The appellants/claim petitioners' (hereinafter, 'the petitioners') case in brief is that on 30.05.2007 while Mr.K.Krishna Prasadu/deceased was proceeding in Scorpio car bearing registration No. AP28AR 5859 (for short, 'the car') along with his friends, at S.V.Cold storage, the driver of the car drove the vehicle in rash and negligent manner and dashed one on going lorry from behind. The accident resulted in instantaneous death SPJ&NTRJ 2 Macma_3326_2014 of the deceased and the driver and severe injuries to other occupants of the car.
3(b) Whereupon the wife, the son, the daughter and the parents of the deceased filed petition pleading that the deceased was aged about 46 years and through business, 20 acres of mango garden and two lorries used to earn Rs.8,00,000/- per annum and his untimely death has resulted their loss of dependency, thus prayed for compensation of Rs.26,00,000/-. 3(c) In inquiry, the first petitioner got herself examined as PW-1 and marked FIR, inquest report, title deed, pattadar pass book, saral forms of income tax department, original income tax return acknowledgment and post mortem examination report/Exs:A-1 to A-7 respectively and also examined eyewitness/PW-2. On the other hand, the respondent No.2/insurer got examined its legal executive as RW-1 and marked cheque return memo, information letter, legal notices/Exs:B-1 to B-4.
3(c) The tribunal on examining the materials with an observation that the accident had occurred only due to negligence of the deceased, dismissed the petition.
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4. Learned counsel for the petitioners would submit that the tribunal failed to properly appreciate the entries in FIR/Ex:A-1 and the evidence of the eyewitness/PW-2 that the deceased was passenger and one Mr. D.Anantha Reddy was driving the vehicle at relevant time. Further submitted that the respondent No.2/insurer had contested before the tribunal on the grounds of cancellation of the insurance policy of the car, pursuant to the dishonour of the cheque issued towards premium. However, the admission of RW-1 about the issuance of comprehensive policy and as the letter/Ex.B-2 and the certificate of posting is falling short to prove service of information about the cancellation of the insurance policy, the owner/respondent No.1 and the insurer/respondent Nos.1 and 2 should have been held liable to pay the compensation. Further the contest about the driving licence of the driver of the car and the deceased was unauthorized passenger or mid way are without any factual or legal basis. In contrast, the petitioners claimed age and income of the deceased remained uncontroverted. Hence prayed for granting just compensation.
5. Learned counsel for the respondent No.2/insurer (hereinafter, 'the insurer') that the deceased was unauthorized SPJ&NTRJ 4 Macma_3326_2014 passenger and the insurance policy of the car was cancelled as the cheque issued by the respondent No.1/owner towards premium was dishonoured and the same was informed to the insured in a letter/Ex.B-2 under certificate of posting. Therefore, no privity of contract of indemnity exists, as such the insurer cannot be held liable to pay compensation. However, as the tribunal has dismissed the claim petition, though on different grounds, the insurer did not prefer appeal. That apart, pleaded that the aspects of absence of valid and effective driving licence of the driver of the car and the unauthorized passenger status of the deceased would also absolve the liability of the insurer. In the circumstances prayed for considering the matter on merits and as the live insurance policy was absent, the insurer shall be exonerated from the liability by dismissing the appeal against it.
6. In regard to notifying the insured about cancellation of insurance policy, the learned counsel cited the authorities (i) Ranju @ Gautam Ghosh v. Rekha Ghosh and others - 2008 AIR SCW 271, (ii) Mohd. Asif Naseer V. West Watch Company through its proprietor - AIR 2020 SC 2006 and (iii) Vishwabandhu v. Sri Krishna and another - AIROnline 2021 SC 678.
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7. We have carefully considered the submissions and perused the materials on record.
8. The respondent No.2/insurer is not disputing the facts of accident and the death of the deceased. Its prime contest is that, the insurance policy has been cancelled by the insurer as the cheque issued by the owner/respondent No.1/owner towards premium was bounced. Pertinently the insurer through the legal executive/RW-1 categorically admitted the facts of issuance of insurance cover note on 16.12.2007 and also comprehensive insurance policy. Additionally placed cheque return memo dated 28.12.2006/Ex.B-1 and the letter dated 20.01.2007 under certificate of posting/Ex.B-2 establish the fact of communication to the respondent No.1/owner.
9. While considering the similar aspect i.e. when cheque issued for payment of premium was dishonoured the Hon'ble Supreme Court in United India Insurance Company Limited v. Laxmamma and others - (2012) 5 SCC 234 held that, the legal position as to where the policy of insurance is issued on receipt of cheque towards premium and such cheque is returned dishonoured, the liability of the authorized insurer to indemnify the SPJ&NTRJ 6 Macma_3326_2014 third parties in respect of the liability which that policy covered subsists and it has to satisfy the award of compensation by reason of the provisions of Sections 147(5) and 149(1) of the Motor Vehicles Act, unless the policy of insurance is cancelled by the insurer and the intimation of such cancellation has reached the insured before the accident.
10. In the light of above dictum, the facts of intimation to the respondent No.1/owner, as to to cancellation of insurance policy has to be considered. It is to be noted that the insurer for the reasons best known to it, did not choose to file either cover note or policy or cancellation proceedings of the insurer, except the letter/Ex.B-2 along with a print out as certificate of posting. The Ex.B-2 is unsigned with a note that it is computer generated statement does not require signature. Further the certificate of posting is also not showing the seal of the postal department.
11. To note, the certificate of posting would at the best can be taken as proof that particular article/letter was handed over at the post office counter to the post office officials but it does not guarantee that the letter was dispatched on the same date and time shown on the certificate much less due delivery to the SPJ&NTRJ 7 Macma_3326_2014 addressee. Thus the presumption of due service either under Section 27 of the General Clauses Act or Section 114 of the Indian Evidence Act cannot be drawn.
12(a) In the authorities cited by the insurer i.e. In Ranju (supra) where service of valid notice to quit was handed over to the son of defendants therein and fixture of copy of notice on the collapsible gate witnessed by an attestor held to be proper service.
13(b) In Vishwabandhu (supra) that when the summons were issued by registered post and was returned unserved with an endorsement as 'refused', it was held that the summons were duly served on the defendants.
14(c) In Mohd.Asif Naseer (supra) it was held in para 18 that mere receipt of notice having been sent under certificate of posting is itself may not be sufficient proof of service. But if the same is coupled with other facts and circumstances which go to show that the party had notice, the same could be held to be sufficient service on the party.
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15. Therefore though the judgments in Ranju and Vishwabandhu are distinguishable, by the observations in Mohd. Asif Nazeer, it shall be held that by merely filing certificate of posting, the fact of proper service of intimation on the respondent No.1/insured cannot be presumed.
16. Another interesting circumstance to note is, after the accident the insurer got issued legal notices/Exs:B-3 and B-4 dated 10.11.2008 to the respondent No.1/owner for production of driving licence of the driver, certificate of registration of the car, permit and a copy of insurance policy. If at all the policy was cancelled in January, 2007 itself the same should have been the stand of the insurer after the accident or before the tribunal. These inconsistent stances of the insurer are giving rise to reasonable doubts.
17. In this position, having regard to the aspects that in the leter/Ex.B-2,cancellation of cover note alone has been mentioned against the statement of RW-1 that the comprehensive policy was also issued and in absence of material showing the letter/Ex.B-2 was served on the respondent No.1/owner notifying the cancellation of policy and the indication in the contents of legal SPJ&NTRJ 9 Macma_3326_2014 notices/Exs:B-3 and B-4 as to existence of live insurance policy, we are of the considered opinion that, the plea of repudiation by the insurer on this ground cannot be sustained.
18. As it is admitted by the RW-1 that the issued insurance policy was comprehensive in nature, the risk of the passengers/occupants of the car stands covered. Thus the contention as to unauthorized passenger/mid way passenger remains unacceptable. Further, although the insurer disputed the driving licence of the driver of the car, failed to bring in any material, except issuance of legal notices/Exs:B-3 and B-4. It is settled position that the burden lies on the insurer to prove that the driver of the vehicle was not holding valid and effective driving licence and merely issuance of notice to the insured will not absolve the burden.
19. Above all, the pleadings and evidence on record are clear that the deceased was only occupant of the car, thus, the observation of the tribunal that the accident occurred due to the negligence of the deceased also unsustainable stays. Therefore, we find no tenable ground in the contentions raised by the insurer. In absence of any legally acceptable basis for absolving SPJ&NTRJ 10 Macma_3326_2014 liability of indemnity, the owner and the insurer/respondent No.1 and 2 shall be jointly and severally held liable to pay compensation to the petitioners.
20. In view of the aforesaid conclusions, the other fact or aspect remains for consideration is, the quantum of compensation for which the claim petitioners are entitled to.
21. The petitioners pleaded that the deceased was aged about 45 years and was earning Rs.8,00,000/- per annum. In this regard, the entries in income tax return/Ex.A-5 are showing the date of birth of the deceased as 14.08.1961. In effect the relevant age of the deceased has to be taken as 45 years. It is well settled proposition that the entries of the income tax return has to be taken into account in determining the income. The Hon'ble Apex Court in recent authority Smt.Anjali and others v. Lokendranath Rathod and others reported in 2022 SCC Online SC 1683 held in Malarvizhi Vs. United India Insurance Company Limited - 2020(4) SCC 228 reiterated the income tax return being statutory document reliance may be placed to determine the annual income of the deceased. The income tax return/Ex.A-5 is reflecting Rs.1,44,050/- as annual income of the deceased. As SPJ&NTRJ 11 Macma_3326_2014 this amount is within taxable limit, the entire sum has to be be accounted for assessment. Further having regard to the age and nature of occupation as per the directives in National Insurance Company Ltd. vs. Pranay Sethi and others 1 25% of the income has to be added towards future prospects. Thus the annual income of the deceased would be of Rs.1,80,062/-. The dependants are four in number as such, 1/4th of the income has to be deducted towards personal living expenses. Thus the annual contribution of the deceased to the family would be of Rs.1,35,046/-. This amount if multiplied with the relevant multiplier applicable to the age of the deceased as prescribed in the dictum of and Sarla Verma and others vs. Delhi Transport Corporation and another 2 i.e. 14, the sum would come to Rs.18,90,644/-. This amount shall be the compensation for loss of dependency.
22. In addition, as per the authority in United India Insurance Company Ltd. v. Satinder Kaur @ Satwinder Kaur and others 3 the petitioners are entitled for spousal, parental and filial consortium at Rs.48,400/- each and Rs.36,300/- towards loss of estate and funeral expenses.
1 (2017) 16 SCC 860 2 2009 ACJ 1298 3 2021(11) SCC 780 SPJ&NTRJ 12 Macma_3326_2014
23. Correspondingly, the petitioners are entitled for total compensation of Rs.21,68,944/- (Rupees twenty one lakhs sixty eight thousand nine hundred and forty four only) with interest at 7.5% per annum from the date of the petition till realization. The respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. The compensation is apportioned among the petitioners in the ratio of 40:15:15:15:15 respectively. The respondents particularly respondent No.2/insurer is directed to deposit the compensation amount within four weeks from the date of receipt of a copy of this judgment. Upon deposit, the petitioners are permitted to withdraw the amounts as per the above apportionment.
24. Resultantly, the appeal is allowed in part with proportionate costs.
As a sequel, pending miscellaneous petitions if any, stands closed.
______________ SUJOY PAUL, J _______________ N.TUKARAMJI, J Date:26.04.2024 ccm